NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
The State appeals from an order of the Law Division admitting defendant into the Pre-Trial Intervention (PTI) Program over the prosecutor's objection. The States argues that the motion judge substituted his judgment for that of the prosecutor, and that the prosecutor's decision to reject defendant's PTI application was based upon a thorough consideration of all appropriate factors and did not constitute a gross and patent abuse of discretion. We agree with the State and reverse.
On May 23, 2011, the Bergen County Grand Jury returned an indictment charging that defendant, between January 1, 2005, and March 9, 2010, committed third-degree theft by stealing in excess of $500 from Hormoz Ashtyani, contrary to N.J.S.A. 2C:20-3. N.J.S.A. 2C:20-2(b)(2)(a) provides that a theft is a third-degree offense if "the amount involved exceeds $500.00 but is less than $75,000.00[.]" The PTI Director initially recommended that defendant be accepted into PTI, conditioned on her agreement to pay restitution and comply with other requirements. The prosecutor, as noted, refused to consent to defendant's admission into PTI.
We briefly state the facts relevant to this appeal.1 In 1982, defendant began working as an office manager for Hormoz Ashtyani, M.D., and was responsible for handling the business aspects of his medical practice, which specialized in the treatment of sleep disorders. In 1998, after earning her doctorate and completing a fellowship in sleep disorders, which qualified her to provide clinical services as a sleep therapist, defendant took a full-time position as Clinical Director of the Hackensack University Medical Center's Institute for Sleep and Wake Disorders. Defendant also formed her own limited liability company through which she provided therapy and other services to Dr. Ashtyani's patients. Nonetheless, defendant continued to work approximately fifteen to twenty hours per week for Dr. Ashtyani in a supervisory position, managing his accounts, as well as his employees, bookkeepers, medical billers, and other office staff.
As the part-time office manager for Dr. Ashtyani's practice, defendant had access to his business checking account and several of his business credit cards. In August 2010, Dr. Ashtyani claims he discovered that defendant had used his business credit cards and forged his name on checks to steal thousands of dollars from him over the course of several years, and had hidden the theft from him. He then filed a criminal complaint against defendant, as well as a civil complaint for damages.
Dr. Ashtyani and a forensic accountant testified before the Grand Jury. The accountant estimated the theft at "approximately $297,000[.]" Defendant also testified before the Grand Jury and denied the theft, claiming that Dr. Ashtyani had authorized payments to her and on her behalf in compensation for her services. Her forensic accountant also disputed the amount at issue. As noted, the Grand Jury returned a one-count indictment charging defendant with third-degree theft.
After entering a plea of not-guilty to the charge, defendant applied for admission into the PTI program. Defendant indicated she was 57 years of age and had no criminal history. Despite Dr. Ashtyani's opposition to the application, the program director recommended that defendant be admitted into PTI, subject to several conditions, including providing $297,000 in restitution. The director stated:
One of the objectives or purposes of PTI is "to provide an alternative to prosecution for defendants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct." It is the position of this office that if convicted, in all likelihood [defendant] would lose her $150,000 a year job . . . at Hackensack University Medical Center, thus making it more difficult if not impossible to fulfill her restitution obligation to the victim.
The prosecutor would not consent to the admission of defendant into PTI, and on March 23, 2012, issued a lengthy letter explaining why. Although the prosecutor accorded "significant weight" to the positive statutory factors — particularly defendant's lack of any prior criminal or disorderly persons convictions and apparent willingness to pay "significant restitution" — the prosecutor nonetheless rejected defendant's application in part because she agreed to pay only $75,000 in restitution, whereas "the Program Director's consent to defendant's entry into PTI [was] conditioned upon defendant agreeing to make `full restitution' to the victim in the amount of $297,000." The prosecutor further determined the statutory "factors in favor of defendant's entry are far outweighed by many other statutory factors that support defendant's denial of entry into PTI[,]" including:
(1) The Nature of the Offense(s). . . .
(2) The Facts of the Case. . . .
(4) The Desire of the Complainant to Forego Prosecution. . . .2
(5) The Existence of Personal Problems and Character Traits. . . .3
(7) The Needs and Interests of the Victim and Society. . . .
(8) The Extent to which the Applicant's Crime Constitutes Part of a Continuing Pattern of Antisocial Behavior. . . .
The prosecutor further stated:
1. Defendant is a licensed professional and abused a position of trust within a medical practice. . .;
2. Defendant's thievery was perpetuated continuously . . . over a five-year period and involved literally hundreds of unauthorized credit card transactions;
3. Defendant used her supervisory position within the practice to conceal and perpetuate her crimes; this is hardly a case of a momentary lapse of judgment;
4. As charged in the indictment, the total loss associated with defendant's theft is upwards of $75,000, and is estimated to be a lot more than that[.]
Finally, this defendant's theft crime cannot be characterized as a minor transgression of law or a momentary lapse of judgment. Instead, defendant's crime evidenced a longer term pattern of deliberate theft of monies not owed to her to support her high standard of living. Furthermore, her crimes breached the highest form of trust [in] violation of professional ethics.
Defendant then appealed the prosecutor's decision to withhold consent to defendant's PTI application.
Following oral argument, the motion judge granted defendant's motion. He stated, in pertinent part:
Defendant . . . acknowledge[s] that she did use credit cards for personal expenses, which she claims . . . were authorized, which the doctor vehemently . . . denied. . . . The complainant, in this case, adamantly opposes PTI. He's expressed his concerns about . . . the defendant being allowed into the PTI program because of the nature of the offense and the persistence of the crime[.]
His objection relies upon . . . the degree and length of time of the offense, that the defendant was a family friend of 30 years, was put in a position of trust[,] . . . shows no remorse, . . . [and] continues to bad mouth and tarnish his reputation[.]
The judge then found factor (5), the existence of personal problems, was not supported by the record; factor (7), the needs and interests of the victim and society, would be furthered by criminal prosecution given the "considerable problem" of employee theft and the State's "interest in insuring that crimes of the nature are prosecuted to the fullest extent[,]" but concluded "the paramount interest[] of the victim . . . to get back his financial loss" would be better served through PTI; and factor (8), the extent to which the applicant's crime constitutes a part of a continuing pattern of anti-social behavior, was not supported by the director's recommendation in favor of PTI.
Next, the judge noted defendant was a 57-year-old first time offender charged with a third-degree nonviolent crime. With respect to factor (6), the likelihood applicant's crime resulted from a "conditional situation" that would be conducive to change by participation in supervisory treatment, he found "if there is supervisory treatment, including psychological evaluation, . . . this [crime] would not occur again." As to the remaining statutory factors, the judge explained:
Factor nine, . . . [t]he [c]ourt does not find that [defendant] is a danger to others.
Ten, whether or not the crime is of an assault or of a violent nature, which it is not.
Eleven, . . . [t]he [c]ourt does not find that the defendant entering . . . PTI is go[ing to] exacerbate [the social problem that led to the applicant's criminal act] in any way.
Twelve, the history of physical violence toward others, that's not applicable, there is not physical violence.
[T]hirteen, if the applicant is in organized crime, does not apply.
Fourteen, . . . [t]his [c]ourt does not find that supervisory treatment would be outweighed by public need for prosecution in this matter, particularly, if there was [t]he [c]ourt would deem full restitution.
Fifteen, . . . there were no other people in this crime . . . so that's not applicable.
[S]ixteen, which . . . applies to co-defendants, which there are none.
Seventeen, [t]he [c]ourt finds, clearly, in this case . . . any harm to society, by abandoning criminal prosecution would not outweigh the benefits to society from channeling her into supervisory treatment.
Having found "the positive factors, clearly, outweigh the negative factors, on a condition . . . that [defendant's] entry include a payment of the upper level of the third degree offense[,]" the judge determined "[o]n balance, . . . there [wa]s a patent and gross abuse of the prosecutor's discretion in denying PTI entry." He additionally stated:
[T]his court finds that $75,000 is a reasonable amount, as a condition of entry into PTI and . . . that should not be reduced in any way, even if there is a civil judgment in [defendant's] favor[.]
. . . .
Further, [t]he [c]ourt is in agreement with the director's assessments on conditions[.]
The judge ordered defendant to be admitted to PTI, subject to providing $75,000 in restitution and adhering to other conditions. This appeal followed.
Our review is guided by the well-settled principle that prosecutors are permitted "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." State v. Negran, 178 N.J. 73, 82 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). "Because of the recognized role of the prosecutor, we have granted enhanced deference to prosecutorial decisions to admit or deny a defendant to PTI." State v. DeMarco, 107 N.J. 562, 566 (1987) (citing State v. Dalglish, 86 N.J. 503, 513-14 n.1 (1981)). As a result, the scope of judicial review of a prosecutor's decision "is severely limited" and "serves to check only `the most egregious examples of injustice and unfairness.'" Negran, supra, 178 N.J. at 82 (quoting State v. Leonardis, 73 N.J. 360, 384 (1977)) (citations omitted). "The question is not whether we agree or disagree with the prosecutor's decision, but whether the prosecutor's decision could not have been reasonably made upon weighing the relevant factors." Nwobu, supra, 139 N.J. at 254.
"The extreme deference which a prosecutor's decision is entitled to in this context translates into a heavy burden which must be borne by a defendant when seeking to overcome a prosecutorial veto of his admission into PTI." State v. Kraft, 265 N.J.Super. 106, 112 (App. Div. 1993). In order for a defendant to overturn the prosecutor's denial of his admission, he must "clearly and convincingly establish that the prosecutor's refusal . . . was based on a patent and gross abuse of his discretion. . . ." State v. Watkins, 193 N.J. 507, 520 (2008) (internal citations and quotations omitted). An abuse of prosecutorial discretion is established where a defendant demonstrates "that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment." State v. Bender, 80 N.J. 84, 93 (1979). "[S]uch an abuse of discretion . . . rise[s] to the level of `patent and gross' . . . [whenever it] clearly subvert[s] the goals underlying [PTI]." Ibid.
Challenges to the propriety of the prosecutor's consideration of particular PTI factors are akin to "questions of law" and the resolution of such challenges requires a determination as to whether the factors were "legally cognizable given the underlying policies of PTI." State v. Maddocks, 80 N.J. 98, 104-05 (1979). Consequently, an appellate court is "free to substitute its independent judgment for that of the trial court or the prosecutor should it deem either to have been in error." Id. at 105.
Applying these standards to the case at hand, we conclude the motion judge erred in ordering defendant's admission into PTI over the prosecutor's objection. We are convinced from our review of the record that the prosecutor considered, weighed, and balanced all of the requisite factors, including those personal to defendant as well as the facts and circumstances of the offense.
The prosecutor not only gave significant emphasis to the circumstances of the offense, including the deliberate pattern of theft from an employer who placed much trust in defendant's honesty, but also considered defendant's individual characteristics. The prosecutor considered mitigating factors personal to defendant, including her age, background, lack of criminal record, willingness to make some restitution, and education and employment. Against those mitigating factors, the prosecutor took into consideration defendant's abuse of a position of trust over a course of years and her abuse of her supervisory position to conceal the crime. Moreover, the prosecutor determined that such a "serious crime" warranted a "meaningful" judicial response.
The motion judge erred by interjecting himself into the process of weighing applicable factors pertinent to the PTI application submitted by defendant. He predicated his decision upon his own assessment of the PTI factors, rather than determining whether the prosecutor failed to consider all relevant factors, considered inappropriate factors or clearly erred in judgment. He compounded his error by then opining that providing some restitution to the victim outweighed the State's declared interest in advancing a broader social value in prosecuting this type of crime. While reasonable minds could differ in analyzing and balancing the applicable factors in this case, judicial disagreement with a prosecutor's reasons for rejection does not equate to prosecutorial abuse of discretion so as to merit judicial override. DeMarco, supra, 107 N.J. at 566-67. In this instance, the motion judge improperly substituted his own discretion for that of the prosecutor. Also, the prosecutor's rejection of defendant's PTI application did not constitute a patent and gross abuse of discretion. We are therefore constrained to reverse.
Reversed.
